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Insurers Have No Duty to Defend Kink.com Suits, Judge Says

Rhett PardonNov 28, 2017 12:00 PM PST

SAN FRANCISCO — A federal judge ruled Monday that California’s State Insurance Compensation Fund and Seneca Insurance Co. have no duty to defend Kink.com from lawsuits filed by three adult performers who claim to have contracted HIV while performing.

The performers — Cameron Bay, Rod Daily and an unidentified John Doe — individually sued Kink.com, which in turn sought relief from its insurers over potential costs of defending the suits and liability.

State Fund and Seneca later filed motions for summary judgment, claiming they had no responsibility to indemnify Kink.com.

The insurers refused to provide defenses in connection with the suits because of an exclusion — that they would not pay for damages arising out of “bodily injury intentionally caused or aggravated” by the studio.

U.S. District Court Judge Yvonne Gonzalez Rogers on Monday sided with the insurers, granting summary judgment to them and denying Kink.com partial summary judgment.

“[T]he court finds that State Fund has no duty to defend [Kink.com] because either plaintiffs’ claims are exclusively governed by California’s workers’ compensation system or the claims which allege [Kink.com] intentionally caused damages pursuant to the policy are barred thereunder,” the judge said in her ruling.

Each of the three performers claimed they became HIV-infected while working for Kink.com at Armory Studios properties.

Bay alleged in her claim that she likely became infected after exposed to bloodborne pathogens on a PublicDisgrace.com production in July 2013.

Bay conditionally settled her suit against the studio in mid-October; however, terms of the proposed settlement have not been made public.

Daily, who was said to have performed exclusively in gay and TS scenes during his porn career, claimed he was infected in August 2013 after he shot for Kink on three occasions, including for the websites TSSeduction.com, KinkMen.com, BoundInPublic.com and NakedKombat.com. Daily’s case is scheduled to go to trial on May 14.

Doe claimed he worked on a BoundInPublic.com shoot in January 2013 and later found that he was infected with HIV. His case is scheduled to go to trial on Aug. 6.

In her opinion issued Monday, Rogers focused on a two-prong test in determining whether an injured employee’s claim is preempted by the so-called “exclusive remedy provision” of workers compensation — first, the injury must arise out of and in the course of the employment and, second, the acts or events giving rise to the injuries must constitute a risk reasonably encompassed within the compensation bargain.

Rogers said there are certain types of intentional employer conduct that bring the employer beyond the boundaries of the compensation bargain.

She noted that the three performers said that “they experienced several incidents of unexpected and aggressive behavior [that Kink.com officials] were powerless to control” and that the shoots weren’t the types of performances they agreed to perform.

According to a footnote in the decision, “these incidents include Doe’s performance, over objections, of oral sex on an individual that had an open wound and who was not wearing a condom; [Bay] being forced to engage in nonconsensual sexual acts which included fisting, spanking and being hit with a cattle prod and which exposed [Bay] to open wounds; and Kink.com’s failure to follow proper protocols associated with exposure to bloodborne pathogens after a performer ejaculated into [Daily’s] eye.”

“[T]hese incidents have no proper place in the employment relationship and indicate that [Kink.com] stepped out of its proper role as [the performers’] employer such that the conduct was beyond the boundaries of the compensation bargain,” Rogers said in her decision.

Rogers ordered the parties to craft a form of judgment within five days.

Upon comment, Karen Tynan, Kink.com’s attorney, told XBIZ: “In this convoluted case of insurance coverage and procedural questions, we finally have a ruling from the federal district court after oral argument this summer. “

“Only the alleged intentional acts done on behalf of [Kink.com parent company] Cybernet would conceivably fall in civil court. This is just a judge deciding which insurance companies have what role in what case.

“The ruling confirmed of what we have long argued,” Tynan said. “These cases should never have been filed in civil court. The plaintiff’s claims were baseless to begin with, and not supported by existing medical science. Their claims to intentionality were even weaker. Judge Rogers ruled that plaintiffs are limited to recovery within the workers comp system. This is a good day for Cybernet, and we thank our coverage counsel for their excellent work.

“As the ruling states, the three plaintiffs originally filed workers compensationclaims but later also filed civil claims against [Kink.com]. The ruling absolves State Fund [and Seneca], which provided the workers compensation insurance to [Kink.com], from costs related to civil litigation, while affirming that these cases should not be tried in civil court.

“We are taking a look at filing a motion for reconsideration to get some clarity around the many footnotes and some of the analysis,” Tynan said. “However, we just got the ruling today, and we’re digesting. Overall this is a good day for us in the overall scope of complex litigation.”